Let’s Make a Deal? What You Need to Know About Plea Bargains

Introduction

Although the United States Constitution reads, “the Trial of all Crimes, except in Cases of Impeachment; shall be by Jury,” this is far from practice. Today, only a minority of cases go to trial. About 98% of federal convictions and 95% of state convictions result from pleas. (ABA) Even the U.S. Supreme Court has called our criminal justice system “a system of pleas, not a system of trials.” (Lafler v. Cooper, 566 U.S. 156 (2012) 157). Why did pleas become commonplace? The answer is practicality: as courts’ caseloads increased, plea bargains’ popularity rose. Plea bargains cut costs and maximize efficiency. Yet the question remains whether plea bargains are in the interest of justice. 

For years, judges and attorneys have expressed concern that plea agreements are not made truly voluntarily. This concern stems from the “trial penalty,” which is when a defendant is sentenced more severely at trial compared to a plea for the same charge. The trial penalty happens because prosecutors offer lesser charges and sentences at plea. At trial, prosecutors often bring forth the maximum breadth of charging. This practice leaves defendants opting for trial with a high risk. Given this risk, it is critical for a defendant to have a trusting relationship with their attorney. An attorney’s role is to inform their client of the government’s offer(s), and to support their client in making an informed, but independent, decision. 

Brief History 

Like other areas of law, plea bargaining began in English common law. Following English plea bargain cases, the 17th-century American court in Commonwealth v. Battis thoroughly questioned the defendant who wanted to plea. The Commonwealth court sought to ensure the defendant was not being coerced nor coaxed by promises before accepting his plea. Despite the courts’ early caution, the plea system’s popularity continued to rise as Prohibition-era liquor law cases overwhelmed the system. The courts continued to warn the public: vacating an incentive-based guilty plea in Shelton v. United States, repealing a statute that increased sentences for defendants convicted by juries in United States v. Jackson, and holding that confessions are only admissible without any inducement in Bram v. United States. Nonetheless, by 1970, guilty pleas resolved 90% of cases. The U.S. Supreme Court ruled in Brady v. United States that a guilty plea is not unconstitutionally compelled when it is made to avoid a potentially higher sentence. In effect, the court cemented today’s common practice as constitutional. 

What is a Plea Agreement?

In both state and federal court, a plea agreement is a contract between the prosecutor and defendant. A plea agreement is also known as a “plea bargain.” The plea bargain offers the defendant some benefits—such as a reduced charge or a less severe sentencing recommendation—in exchange for the defendant’s guilty plea. The judge is not a part of the process until the final stage in court. Once the defendant has agreed to the plea bargain, the judge questions the defendant in court to ensure that the defendant is knowingly accepting the terms. This questioning process is called the plea colloquy. 

Although there are some benefits to the plea bargain, there are also consequences to consider. For instance, the defendant gives up several constitutional rights (discussed below) when they accept a plea. The defendant may also face immigration consequences (such as deportation), losing property or money, and the impact of a guilty conviction on their livelihood. The defendant will also have to give up the right to vote and have a weapon in their home if they are convicted of a felony. Sometimes, it is possible to seal or expunge the record of the conviction. You may visit this article on our website to learn more.

In California state court, plea bargaining is regulated by the California Penal Code. In federal court, plea bargaining is regulated by the Federal Rules of Criminal Procedure and the United States Sentencing Guidelines. 

 Requirements of a Plea Agreement

The primary requirement for a plea bargain is that the defendant pleads guilty or no contest to the charge(s) brought against them in the agreement. In doing so, the defendant also waives their right to a trial by jury. The defendant also gives up their constitutional right to: 

1. Be protected from self-incrimination 

2. Cross-examine the government’s witnesses 

3. Challenge how the government or police obtained evidence 

4. To appeal the conviction (in most cases)

Who Qualifies for a Plea Agreement? When Are Plea Agreements Made?

Most defendants qualify for a plea deal. It is up to the prosecutor to extend the plea deal to the defendant. Plea bargaining can also take place during almost any stage in the criminal trial process. Commonly, plea bargaining happens before the trial takes place. While some plea agreements are based solely on the defendant’s case, others are based on how the defendant can help the government in another case, such as by providing testimony in exchange for a reduced sentence. (See Section 5K1.1 of the United States Sentencing Guidelines). 

The Prosecutor’s Discretion 

In many ways, the prosecutor has a lot of power in the plea bargaining process. First, the prosecutor has discretion over charging. The prosecutor can decide to charge the defendant with several charges, such as conspiracy, attempt, and the crime itself. For wobbler crimes (which can be charged as a felony or a misdemeanor), the prosecutor also decides how to charge. Charging is crucial because more severe charges open up the way to more severe sentencing.

The prosecutor’s power is also derived from the sentencing system, especially when mandatory minimums apply. The prosecutor may choose the charge that invokes the mandatory minimum, or offer to drop that charge in the plea. There are also sentencing reductions at the federal level for defendants who “accept responsibility” (plea) and do so quickly. (See Section 3E1.1 of the United States Sentencing Guidelines). 

In addition to charging discretion and the pressures of the sentencing system, the prosecutor has the power of information. The prosecutor can negotiate which facts they will bring forth to the sentencing hearing. Facts are critical because they can mitigate (lower) or aggravate (increase) the sentence determined by the judge. For example, in a plea bargain the prosecutor may offer to leave out facts that could cause the judge to increase the sentence. 

Finally, the prosecutor may have time on their side. If the prosecutor offers the plea bargain at the early stages, the defendant may not yet have access to all of the evidence the prosecutor does (or does not) have against the defendant. Without this information, the defense cannot be sure what the prosecutor can or cannot prove beyond a reasonable doubt. (See What Is The Burden of Proof?)  If the plea bargain is offered at the later stages, the defendant may be feeling anxious about the upcoming trial. Then, the plea can offer a definitive resolution to the case. 

These pressures faced by the defendant demonstrate the importance of an attorney’s role in empowering their client’s decision making.

Types of Plea Agreements

As discussed above, the prosecutor has discretion over the charge, facts, and what sentence they recommend. This discretion shapes what kind of plea agreements, or bargains, there are:

• Charge bargaining – the type and amount of charges

• Fact bargaining – which facts will be included at sentencing

• Sentencing bargaining – recommending a lower sentence to the judge

Appeal 

Sometimes, a defendant gives up their right to appeal in their plea agreement. At other times, it is possible to withdraw the plea, appeal the conviction, or appeal the sentence. However, the appeal process involves a review for error, such as whether the defendant’s constitutional rights were violated, or whether the court abused its discretion. Abuse of discretion means the court’s ruling was beyond what a reasonable factfinder would decide. This is a difficult threshold to meet. Appeal is not an option for the defendant to merely change their mind. 

Depending on the circumstances, a defendant may be able to withdraw their plea. In California state court, a defendant is allowed to withdraw their plea for good cause. (See CPC Section 1018) Good cause also means more than changing one’s mind; to show good cause, a defendant must prove there was a legitimate mistake. For example, the defendant may have been under duress or in a mental state that prevented them from making a knowledgeable choice. The defendant could have had ineffective assistance of counsel, or argue that they were coerced. In federal court, the Federal Rule of Criminal Procedure 11 oversees pleas. The federal court requires a “fair and just reason” for withdrawing the plea; this standard is similar to the “good cause” standard in state court. All in all, these are challenging circumstances to prove. It is important for the defendant to be informed and make a voluntary decision when it comes to their plea. 

Other Options

Another alternative to trial and traditional sentencing is called diversion. Diversion allows a state or federal case to be resolved through an alternative program, such as rehabilitation, community service, and monitoring. After completion, charges are dismissed. You may visit our Federal Alternative Sentencing Article and State Alternative Sentencing Article to learn more.

Conclusion

In sum, plea bargaining was not common practice during the founding of our Constitution. Yet today's plea bargain system resolves the majority of cases in federal and state courts. There are both benefits and drawbacks to this now-common practice. Whether or not a defendant agrees to a plea bargain is entirely their decision. An attorney’s role is to inform their client of their options and the potential outcomes, to empower the client’s decision making process. To learn more about the sentencing process, you may visit this article on our website for federal court, and this article on our website for state court. You may also learn more about what to expect in a federal criminal case (here) or a state criminal case (here). As always, should you have any questions, don’t hesitate to reach out.